Abolishing adultery: Supreme Court scores a victory for gender equality

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New Delhi | Published: September 28, 2018 3:22:53 AM

The Supreme Court (SC) on Thursday struck down the Section 497 of the Indian Penal Code.

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The Supreme Court (SC) on Thursday struck down the Section 497 of the Indian Penal Code. This section criminalised adultery by stating that if a man had consensual sexual intercourse with a married woman without her husband’s consent, he is punishable by law. The 158-year-old law was found to be in violation of Articles 21 and 14 of the Constitution, sections that confer the right to life and personal liberty and the right to equality, both fundamental rights. A five-judge bench of the SC made the decision, and labelled the penal provision as “affecting the individual dignity and equality of women”, thus making the provision in the law unconstitutional. Chief Justice Dipak Misra, in his judgment, said that the subordination of one sex by the other paves the way for traditional, stereotypical gender roles and labelled the provision “arbitrary”.

The court was examining the constitutionality of the provision due to a petition filed by Kerala-resident Joseph Shine who, in his petition, had termed the law “unjust” towards women. The provision, firstly, does not offer any legal recourse for the spouse of the man who has sexual intercourse with another married woman. Only the partner of the married woman who was involved in a relationship with another man could file a case, that too only against the man with whom his wife was involved. Secondly, it relegated the woman in a marriage to a secondary status and not as the man’s equal—almost giving the husband proprietary rights over his wife, in the sense, it bound a woman in a marriage from exercising her right to choose a romantic partner to the permission of her husband while it didn’t give the wife any such rights. This implied that women were the “chattel of their husbands” and that the consent, permission and perspective of women were irrelevant. Individuals are not legally bound to preserve fidelity in a marriage, although this may seem desirable from some points of view. It is private matter of the individuals in question. This court has thus left adultery a concern for only civil cases that deal with the dissolution of a marriage. It was about time this archaic law was abolished.

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